Friday, November 09, 2012

Today, the Supreme Court of Canada issued its judgment in Moore v. British Columbia, a case that presented the question of a province's obligation to provide special education services to students with learning disabilities. Although I'd like to hear reactions from my Canadian readers, and the court did not endorse the systemic remedy that the plaintiff had sought, the case seems, overall, like a big win for students with disabilities, and it includes some choice pull quotes, including (emphasis added):

The preamble to the School Act,[1] the operative legislation when Jeffrey was in school, stated that “the purpose of the British Columbia school system is to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy”. This declaration of purpose is an acknowledgment by the government that the reason all children are entitled to an education, is because a healthy democracy and economy require their educated contribution. Adequate special education, therefore, is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia.

And (with the awesome cite to Brown v. Board):

A central issue throughout these proceedings was what the relevant “service . . . customarily available to the public” was. While the Tribunal and the dissenting judge in the Court of Appeal defined it as “general” education, the reviewing judge and the majority defined it as “special” education.

I agree with Rowles J.A. that for students with learning disabilities like Jeffrey’s, special education is not the service, it is the means by which those students get meaningful access to the general education services available to all of British Columbia’s students:

It is accepted that students with disabilities require accommodation of their differences in order to benefit from educational services. Jeffrey is seeking accommodation, in the form of special education through intensive remediation, to enable him equal access to the “mainstream” benefit of education available to all. . . . In Jeffrey’s case, the specific accommodation sought is analogous to the interpreters in Eldridge: it is not an extra “ancillary” service, but rather the manner by which meaningful access to the provided benefit can be achieved. Without such special education, the disabled simply cannot receive equal benefit from the underlying service of public education. [Emphasis added; para. 103.]

The answer, to me, is that the ‘service’ is education generally. Defining the service only as ‘special education’ would relieve the Province and District of their duty to ensure that no student is excluded from the benefit of the education system by virtue of their disability.

To define ‘special education’ as the service at issue also risks descending into the kind of “separate but equal” approach which was majestically discarded in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Comparing Jeffrey only with other special needs students would mean that the District could cut all special needs programs and yet be immune from a claim of discrimination. It is not a question of who else is or is not experiencing similar barriers. This formalism was one of the potential dangers of comparator groups identified in Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396.

If Jeffrey is compared only to other special needs students, full consideration cannot be given to whether he had genuine access to the education that all students in British Columbia are entitled to. This, as Rowles J.A. noted, “risks perpetuating the very disadvantage and exclusion from mainstream society theCode is intended to remedy” (see Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, at p. 1237; Gwen Brodsky, Shelagh Day and Yvonne Peters, Accommodation in the 21st Century (2012) (online), at p. 41).

And the nub of the court's conclusion:

It was therefore the combination of the clear recognition by the District, its employees and the experts that Jeffrey required intensive remediation in order to have meaningful access to education, the closing of the Diagnostic Centre, and the fact that the Moores were told that these services could not otherwise be provided by the District, that justified the Tribunal’s conclusion that the failure of the District to meet Jeffrey’s educational needs constituted prima facie discrimination. In my view, this conclusion is amply supported by the record.

And this discussion of budget cuts (which has obvious resonances with budget-cut litigation under the ADA here in the US):

The District’s justification centred on the budgetary crisis it faced during the relevant period, which led to the closure of the Diagnostic Centre and other related cuts. There is no doubt that the District was facing serious financial constraints. Nor is there any doubt that this is a relevant consideration. It is undoubtedly difficult for administrators to implement education policy in the face of severe fiscal limitations, but accommodation is not a question of “mere efficiency”, since “[i]t will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier” (VIA Rail, at para. 125).

In Jeffrey’s case, the Tribunal accepted that the District faced financial difficulties during the relevant period. Yet it also found that cuts were disproportionably made to special needs programs. Despite their similar cost, the District retained some discretionary programs, such as the Outdoor School — an outdoor campus where students learned about community and the environment — while eliminating the Diagnostic Centre. As Rowles J.A. noted, “without undermining the educational value of the Outdoor School, such specialized and discretionary initiatives cannot be compared with the accommodations necessary in order to make the core curriculum accessible to severely learning disabled students” (para. 154).

More significantly, the Tribunal found, as previously noted, that the District undertook noassessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed. This was cogently summarized by Rowles J.A. as follows:

The Tribunal found that prior to making the decision to close [the] Diagnostic Centre, the District did not undertake a needs-based analysis, consider what might replace [the] Diagnostic Centre, or assess the effect of the closure on severely learning disabled students. The District had no specific plan in place to replace the services, and the eventual plan became learning assistance, which, by definition and purpose, was ill-suited for the task. The philosophy for the restructuring was not prepared until two months after the decision had been made (paras. 380-382, 387-401, 895-899). These findings of fact of the Tribunal are entitled to deference, and undermine the District’s submission that it discharged its obligations to investigate and consider alternative means of accommodating severely learning disabled students before cutting services for them. Further, there is no evidence that the District considered cost-reducing alternatives for the continued operation of [the] Diagnostic Centre. [Emphasis added; para. 143.]

The failure to consider financial alternatives completely undermines what is, in essence, the District’s argument, namely that it was justified in providing no meaningful access to an education for Jeffrey because it had no economic choice. In order to decide that it had no other choice, it had at least to consider what those other choices were.